Regassa v. Sanders et al
Filing
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ORDER DISMISSING CASE : IT IS HEREBY ORDERED that the Second Amended Complaint (Doc. 29), and this action, are DISMISSED with prejudice for failure to state a claim upon which relief may be granted. Plaintiff is ADVISED that this dismissal shall count as one of his three allotted strikes under the provisions of 28 U.S.C. § 1915(g). Signed by Judge J. Phil Gilbert on 8/23/2018. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ADMASSU REGASSA,
No. 09303-007,
Plaintiff,
vs.
K. SANDERS, et al.,
Defendants.
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Case No. 17-cv-999-JPG
MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Admassu Regassa, presently incarcerated at the United States Penitentiary in
Petersburg, Virginia, brings this pro se action for deprivations of his constitutional rights by
persons acting under the color of federal authority pursuant to Bivens v. Six Unknown Agents of
the Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff’s Second Amended Complaint (Doc. 29) is now before the Court for preliminary
review pursuant to 28 U.S.C. § 1915A. The Second Amended Complaint pertains to Plaintiff’s
prior incarceration at the United States Penitentiary in Marion, Illinois (“USP-Marion”). While
incarcerated at USP-Marion, Plaintiff was in the Sex Offender Management Program (“SOMP”)
and was a participant in the Sexual Offenders Treatment Program (“SOTP”). According to
Plaintiff, approximately 60 different officials repeatedly subjected him various restrictions and
punishments (e.g., limited or no access to TRULINCS, USP-Marion’s electronic public
messaging service; requiring preapproval for outgoing mail; limiting telephone, commissary, and
visitation privileges; placing Plaintiff on a Correctional Management Plan (“CMP”); and
periodically detaining Plaintiff in the Special Housing Unit (“SHU”)). Defendants allegedly
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subjected Plaintiff to these restrictions and/or punishments not because of his status as a sex
offender or because of his misconduct while incarcerated at USP-Marion, but because of a vast
conspiracy to retaliate and/or discriminate against him.
Background
Plaintiff’s original 87-page Complaint, which included 214 pages of exhibits and directed
claims against 116 defendants at three different institutions, did not survive preliminary review.
(Doc. 14). The Complaint was filled with sketchy and conclusory allegations. Moreover, the
few allegations that mattered were “scatter[ed] and conceal[ed] in a morass of irrelevancies.”
United States ex rel. Garst v. Lockheed–Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003).
Thereafter, Plaintiff timely filed a First Amended Complaint. (Docs. 16 and 16-1).
Although the First Amended Complaint limited Plaintiff’s claims to a single institution (USPMarion), it was 91 pages, included 428 pages of exhibits, directed claims against 88 defendants,
and suffered from the same deficiencies as the original Complaint. Accordingly, it was also
dismissed. (Doc. 27). However, the dismissal was without prejudice and with leave to amend.
Id.
Screening Standard
The review standard under § 1915A is the same as the notice pleading standard under
Federal Rule of Civil Procedure 12(b)(6). Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir.
2000). To state a claim, the allegations must set forth a “short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Factual allegations must
give enough detail to give “ ‘fair notice of what the ... claim is and the grounds upon which it
rests.’ ” EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (add'l citation omitted)). The factual
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“allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility
above a ‘speculative level.’ ” Id. (quoting Bell Atlantic, 550 U .S. at 555). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged....Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft
v. Iqbal, 556 U.S. 662 (2009)(citing Bell Atlantic, 550 U.S. at 555–56).
Pro se pleadings are liberally construed when applying this standard. Bridges v. Gilbert,
557 F.3d 541, 546 (7th Cir. 2009). However, a court should not allow defendants to be subjected
to “paranoid pro se litigation ... alleging ... a vast, encompassing conspiracy” unless plaintiff
meets a “high standard of plausibility.” Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009);
see also Walton v. Walker, 364 F. App'x. 256, 258 (7th Cir. 2010).
Discussion
The Second Amended Complaint suffers from many of the same problems as the prior
pleadings. It consists of 55 handwritten pages, directs claims against 60 defendants, and is
accompanied by 298 pages of exhibits. As with prior complaints, Plaintiff continues to employ
the “kitchen sink” approach to pleading, referencing just about every slight he allegedly suffered
during his tenure at USP-Marion. Significant portions of the Second Amended Complaint are
nothing more than legal conclusions couched as factual allegations and/or threadbare recitals of
the elements of a cause of action supported by mere conclusory statements. For instance,
Plaintiff repeatedly claims, in a conclusory manner, that various officials conspired to retaliate
and/or discriminate against him. Such allegations are not entitled to an assumption of truth. See
Iqbal, 556 U.S. at 678–79 (citing Twombly). The Court will not delve into each and every
conclusory allegation in the Second Amended Complaint. It will simply state that the numerous
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allegations pertaining to a vast conspiracy to violate Plaintiff’s constitutional rights are not
enough to withstand the standard established by Twombly/Iqbal and are therefore dismissed.
Plaintiff’s remaining claims are addressed in turn below.
Access to the Courts
Plaintiff attempts to bring two access to the courts claims. The first claim relates to
restrictions on Plaintiff’s outgoing mail. (Doc. 29, p. 38). According to the Second Amended
Complaint, Plaintiff was required to affix preapproved mailing labels to all of his outgoing mail
(a restriction apparently related to his status as a sex offender). Id. According to Plaintiff,
mailroom employees refused to mail “some” of his legal mail because it did not have an
approved mailing label. Id. On one occasion, when Plaintiff complained about the restriction, a
mailroom employee threatened to send Plaintiff to the SHU.
Plaintiff, however, does not
describe how the alleged conduct caused a detriment to his ability to pursue a claim or defense in
court. Accordingly, these allegations do not state a claim for denial of access to the courts. See
Christopher v. Harbury, 536 U.S. 403, 416 (2002); Marshall v. Knight, 445 F.3d 965, 968 (7th
Cir. 2006).
The second access to the courts claim pertains to a civil rights action Plaintiff is presently
pursuing the Middle District of Pennsylvania, regarding his prior confinement at the United
States Penitentiary in Lewisburg, Pennsylvania (USP-Lewisburg”). See Regassa v. Brininger,
14-cv-1122-MWB-JVW.
Plaintiff claims that, in order to successfully prosecute medical
malpractice claims at issue in that action, he needs (or needed) a certificate of merit (“COM”).1
(Doc. 29, p. 44-45). Plaintiff alleges various officials at USP-Marion denied or ignored his
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Pennsylvania law requires a plaintiff alleging medical malpractice to file a COM. The certificate must attest either
that an appropriate licensed professional supplied a written statement that there exists a reasonable probability that
the care provided fell outside acceptable professional standards, or that expert testimony of an appropriate licensed
professional is unnecessary. Pa. R. Civ. P. 1042.3(a)(1) & (3).
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requests for a COM, failed to investigate his claims pertaining to medical malpractice at USPLewisburg, and/or failed to provide him with records supporting his medical malpractice claims.
Id. According to Plaintiff, these actions constitute a denial of his right of access to the courts.
Id. However, Plaintiff does not identify an actual injury; he does not state that any claims were
dismissed because of the complained of conduct, and the medical malpractice action is presently
pending. Moreover, Plaintiff is alleging that USP-Marion officials failed to help him investigate
and prosecute his case against USP-Lewisburg officials. But, the right of access to the courts is
not “an abstract freestanding right to…legal assistance.” Lewis v. Casey, 518 U.S. 343, 351
(1996). The state has no duty to “enable the prisoner to discover grievances and to litigate
effectively once in court.” Id. at 354. (emphasis omitted). Accordingly, these allegations also
fail to state a claim upon which relief may be granted.
For these reasons, Plaintiff’s access to the court claims are subject to dismissal for failure
to state a claim upon which relief may be granted.
Due Process Claims
Between late 2016 and June 2017, Plaintiff received several incident reports. (Doc. 29,
pp. 35-36, 38-40, 42-43). In connection with these reports, Plaintiff was sanctioned with 60 days
loss of TRULINCS privileges (September 2016), 90 days loss of TRULINCS privileges
(November 2016), loss of telephone and commissary privileges (November 2017), 77 days in the
SHU (November 2017), and 42 days in the SHU (June 2017). Id. Plaintiff claims that his due
process rights were violated because the incident reports were false (allegedly based on
misinformation, hearsay, gossip, and rumors) and/or because hearing officers used abusive
language during his hearing. Id. He also claims that during the November 2017 hearing he was
not allowed to call “some” of his witnesses. (Doc. 29, pp. 42-43).
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Plaintiff’s due process claims fail for two reasons. First, a false conduct report does not
create a due process claim because the inmate has the ability to litigate the truthfulness of the
report through the hearing process. Lagerstrom v. Kingston, 463 F.3d 621, 624–25 (7th Cir.
2006). Further, with the exception of only being allowed to call “some” witnesses at the
November 2017 hearing, Plaintiff does not point to any irregularity suggesting a Wolff2 violation.
Second, even assuming there was a procedural due process violation, the punishments Plaintiff
describes do not trigger due process concerns. The Second Amended Complaint does not
suggest that the conditions Plaintiff endured during his confinement in the SHU (77 days in
November 2017 and 42 days in June 2017) imposed an “atypical and significant hardship.”
Thus, as alleged, Plaintiff cannot sustain a due process claim with respect to his placement in the
SHU. See Sandin v. Conner, 515 U.S. 472 (1995); Marion v. Columbia Corr. Inst., 559 F.3d
693, 697-98 (7th Cir. 2009); Wagner v. Hanks, 128 F.3d 1173, 1175 (7th Cir.1997). The
remaining punishments (loss of various privileges) do not amount to a constitutionally significant
deprivation of liberty. See e.g., Thomas v. Ramos, 130 F.3d 754, 762 n.8 (7th Cir. 1997) (and
cases cited therein).
For these reasons, Plaintiff’s due process claims are subject to dismissal for failure to
state a claim upon which relief may be granted.
Harassment
Plaintiff claims that numerous officials harassed, embarrassed, and/or “verbally
assaulted” him. (Doc. 29, pp. 35-36-37, 39, 41-43). But the conduct Plaintiff describes (e.g.,
rapping on Plaintiff’s cell bars with a flashlight, “intentionally and provocatively” shining a
flashlight into Plaintiff’s cell, using inflammatory language, calling Plaintiff a pervert) do not
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Due process requires that an inmate facing a disciplinary hearing is given advance written notice of the charge, the
right to appear before the hearing panel, the right to call witnesses if prison safety allows, and a written statement of
the reasons for the resulting discipline. Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974).
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state a constitutional claim. See Dobbey v. Ill. Dep’t of Corr., 574 F.3d 443, 446 (7th Cir. 2009).
DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000); Beal v. Foster, 803 F.3d 356, 358 (7th Cir.
2015).
For these reasons, Plaintiff’s Eighth Amendment claims pertaining to harassment and
verbal abuse are subject to dismissal for failure to state a claim upon which relief may be
granted.
Mishandling Grievances
Plaintiff claims that numerous officials destroyed or mishandled his grievances. (Doc.
29, pp. 39-41, 45). But, the fact that prison officials denied, or even mishandled, grievances,
standing alone, states no claim. “Prison grievance procedures are not mandated by the First
Amendment and do not by their very existence create interests protected by the Due Process
Clause” of the Fourteenth Amendment. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011)
(citations omitted). The Constitution requires no procedure at all, and the failure of state prison
officials to follow their own procedures does not, standing alone, violate the Constitution. Maust
v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100–01 (7th
Cir. 1982).
Accordingly, these claims are subject to dismissal for failure to state a claim upon which
relief may be granted.
Relaying “Misinformation”
Plaintiff claims that, on June 28, 2017, two officials “disseminated misinformation and
hearsay and gossip and rumors about [him] to other staff members and inmates,” endangering
Plaintiff’s safety. (Doc. 29, p. 41). Harassment may become actionable where it involves a
“credible threat to kill, or to inflict any other physical injury.” Dobbey v. Ill. Dep't of Corr., 574
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F.3d 443, 446 (7th Cir. 2009). Allegations that a prison officer has provoked or persuaded other
inmates to cause harm to a plaintiff support an inference that the officer attempted to inflict
injury on the plaintiff in violation of the Eighth Amendment. See Irving v. Dormire, 519 F.3d
441, 449 (8th Cir. 2008) (officer's attempt to have other inmates attack plaintiff may violate
Eighth Amendment, even where the plaintiff was not actually assaulted); Northington v. Jackson,
973 F.2d 1518, 1525 (10th Cir. 1992) (Eighth Amendment claim stated where guard “intended to
do harm to [a prisoner] by inciting inmates to beat him[;]” guard told other inmates that plaintiff
was a snitch).
Here, Plaintiff has failed to state a claim because his allegations are conclusory. He has
not identified the specific threat or language used by the officials. He has not described the
“misinformation” that was disclosed. He has not pleaded that he was actually harmed, and he
has not provided any facts making it plausible that his fear of harm was legitimate. On these
facts, it is not a reasonable inference that the officials intended to harm Plaintiff by inciting
others to attack him. Accordingly, this claim does not meet the standards in Iqbal and Twombly,
and is subject to dismissal for failure to state a claim upon which relief may be granted.
Leave to Amend
The failure of the Second Amended Complaint to state a colorable constitutional claim
begs the question, should Plaintiff be given a third opportunity to plead his case? Leave to
amend need not be granted when further amendment would be futile. McCree v. Grissom, 657
F.3d 623, 624 (7th Cir. 2011). “[F]utile repleadings include restating the same facts using
different language, Wakeen v. Hoffman House, Inc., 724 F.2d 1238, 1244 (7th Cir. 1983),
reasserting claims previously determined, id., failing to state a valid theory of liability, Verhein v.
South Bend Lathe, Inc., 598 F.2d 1061, 1063 (7th Cir. 1979), and the inability to survive a
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motion to dismiss, Glick v. Koenig, 766 F.2d 265, 268 (7th Cir. 1985).” Garcia v. City of
Chicago, Ill., 24 F.3d 966, 970 (7th Cir. 1994). In this case, giving Plaintiff leave to amend
would be futile. Plaintiff has been given numerous opportunities to file amended pleadings, all
of them unsuccessful. In his Second Amended Complaint, Plaintiff brings the same conclusory
allegations and fails to identify any facts suggesting a valid claim. Pro se plaintiffs are afforded
great deference, but this Court is not required to allow them opportunities to amend ad nauseam
where doing so would be futile. Accordingly, Plaintiff will not be given leave to amend, and this
case will be dismissed with prejudice.
Disposition
IT IS HEREBY ORDERED that the Second Amended Complaint (Doc. 29), and this
action, are DISMISSED with prejudice for failure to state a claim upon which relief may be
granted. Plaintiff is ADVISED that this dismissal shall count as one of his three allotted
“strikes” under the provisions of 28 U.S.C. § 1915(g).
If Plaintiff wishes to appeal this Order, he may file a notice of appeal with this Court in
accord with. FED. R. APP. 4(a). If Plaintiff does choose to appeal, he will be liable for the
$505.00 appellate filing fee irrespective of the outcome of the appeal. See FED. R. APP. 3(e); 28
U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza,
181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockish, 133 F.3d 464, 467 (7th Cir. 1998).
Moreover, if the appeal is found to be nonmeritorious, Plaintiff may also incur another “strike.”
A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the
30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more
than twenty-eight (28) days after the entry of the judgment, and this 28-day deadline cannot be
extended.
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The Clerk’s Office is DIRECTED to close this case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: August 23, 2018
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge
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